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We really need a category here for "cemetery law." The New York Times has a lovely story this morning on Colma, California, which is a town composed largely of cemeteries. In a story of triumph in the face (or maybe because) of eminent domain, the Times reports that:

Colma was founded as a necropolis by cemetery operators in 1924, to
protect graveyards from capricious acts of government. The businesses
of many of those operators had been disrupted a decade earlier when the
city of San Francisco, 10 miles to the north, evicted all but a couple
of the 26 cemeteries there, along with the thousands of bodies they
held. The city’s politicians had argued that cemeteries spread disease,
but the true reason for the eviction was the rising value of real
estate, said San Francisco’s archivist emeritus, Gladys Hansen.

For
the first few decades, Colma’s residents were mainly gravediggers,
flower growers and monument makers. But by the 1980s, other types of
people and businesses were settling in next to the dead. Today the
little city has many thriving businesses, including car dealerships,
two Home Depots, shopping centers and a game room.

Still, 73 percent of Colma’s 2.2 square miles is
zoned for cemeteries — or “memorial parks,” as the operators call them.
There are 17 such parks, including those that cater to Italians, Jews,
Greek Orthodox, Japanese and Serbs.

The rest of the story's a great read. My favorite line? The last one, “Cemeteries,” said Ken Varner, president of one of the cemeteries, “are really for the living.” So true.

Alfred L. BrophyComments are held for approval, so they will not appear immediately.

Perhaps 1L Property students may find Prof. Amar's article of particular interest in this festive season of the law school year. His subtitle says it all:"Why Students Tend Not to Be Able To Demonstrate the Full Extent of Their Knowledge, and How They Might Do Better."

Rick Duncan

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I participated in a conference yesterday at Yale on the political future of Cuba. Panels covered the situation in Cuba today as well as the likely future of US policy towards Cuba after Castro's death. I spoke on the property disputes that might surface in a transitional Cuban society and the possible responses of a post-Castro government.

About 6000 people who were US citizens at the time of Castro's ascension to power in 1959 have registered claims with the U.S. government for property they lost during the first years of the Cuban revolution. Their claims have an estimated value of $8 billion. In addition, there are hundreds of thousands of Cubans who lost property under the Castro government. Large agricultural land-owners had their properties nationalized under a series of agrarian reforms. Landlords lost property occupied by tenants, who were given the right to purchase the properties at low, fixed prices. Mortgages were canceled. And anyone who fled the island had their property confiscated and redistributed. By the end of 1968, virtually all private enterprise on the island had been confiscated, including 57,000 small and medium-sized, and mostly Cuban-owned, businesses. Estimates of the possible property claims by Cuban-Americans range from $25 billion up to nearly $100 billion, although the latter figure strikes me as wildly inflated (it's several times larger than the Cuban GDP).

Many Cuban-Americans are waiting for full property restitution, a hope that has only been encouraged by the experience of some of the former Communist states of Eastern Europe. Germany, for example, embarked on an ambitious program of property restitution (that is, the actual restoration of possession of expropriated properties -- not simply compensation) upon its reunification. Restitution was also implemented in Bulgaria, the Baltics and the Czech Republic. With news of Fidel's illness, some Cubans in Miami are dusting off their files and getting ready to press their claims with the hope of reclaiming ownership of property they lost.

While I can sympathize with the desire to reclaim lost property -- my family lost a modest but wonderful home in Centro Habana and a small weekend farm outside Havana when they fled Cuba in the early 1960s after my father did a stint in a Cuban jail for supposedly possessing anti-Castro propaganda -- but the attempt to actually press these claims would seem to me to be sheer folly. The fact is, nearly 50 years have passed since my family last lived in that home in Havana. The people in whose care we left the home traded it with another family about a decade ago, and who knows how many times it's changed hands since then. It's someone else's home now, and in the meantime, my family -- although they arrived with nothing (one hand in front and one hand behind, as the Cuban saying goes) has done pretty well in the United States. It's not at all clear to me how justice would be done by my dispossessing someone who has suffered fifty years of tyranny and diminished economic opportunity under a one-party Communist state. And, of course, there's the question of the propriety of using the 1959 allocation of property as a baseline for restitution, since that allocation was itself influenced by the Batista government -- no model of democracy and respect for human rights -- years of North American intervention in the Cuban economy and political system, and centuries of slavery.

More pragmatically, if even half of all the Cuban-Americans who lost property return to Cuba and file claims to have property restored, virtually all the property on the island will be locked up in litigation for years to come, with predictable consequences for the ability of a post-Castro government to attract foreign investment and grow the economy. After all, adjudicating these claims will be no small administrative task, particularly since the Cuban government has failed to update the property records for the last 50 years.

So far-fetched is the idea of full property restitution (or even compensation) in a post-Castro Cuba, it strikes me that any attempt to implement such a scheme is either hopelessly foolish or outright dishonest. The resources simply don't exist to accomplish the task.

The question of how to heal the wounds between Cuba and the exile community is a real one. Restitution of property, however, is not the answer. It will just create new wounds and leave a post-Castro Cuba on a dubious footing for future development.

This is not to say that restitution for long past property harms is never appropriate. I have some sympathy with Native American land claims and with claims by African Americans for reparations for slavery. But I think that sympathy is due in large part to the fact that those communities continue to suffer the consequences of their losses in a way that is less true of Cuban-Americans, who are generally much better off than the people currently occupying the property they formerly owned. It would be really interesting to hear Prof. Brophy's thoughts on this, since he's written extensively on the issue of reparations.

In a decision highlighting the value of open space in the nation's most densely populated state, the New Jersey Supreme Court ruled yesterday that Mount Laurel acted properly when it seized a developer's land to preserve open space.

"We recognize ... that the citizens of New Jersey have expressed a strong and sustained public interest in the acquisition and preservation of open space," the state's highest court said in the 6-1 decision.

Jeff Tittel, director of the New Jersey chapter of the Sierra Club, called the court's action an "important victory" for people and municipalities concerned about the impact of sprawl on the dwindling amount of undeveloped land in the state.

"In the race for open space, New Jersey just picked up a lot of speed," said Tittel.

The case has been closely watched in the wake of last year's U.S. Supreme Court decision giving wider authority to local governments to use eminent-domain powers to seize private property for economic revitalization - not just for more traditional reasons such as building highways and government buildings.

Rick Duncan

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Cultural property is subject to two
international legal regimes, one of which protects cultural property
during wartime, and the other of which regulates the international
trade in cultural property. Neither legal regime has been notably
successful. Cultural property is often targeted and destroyed during
wars, or given inadequate protection. And the international trade in
cultural property flourishes because states have been unwilling to
invest resources in controlling it. As a result, scholars and advocates
argue that both legal regimes should be strengthened. Sanctions should
be enhanced; states should be forced to devote greater resources to
complying with treaties; treaty obligations should be made stricter and
more detailed; and states that have not ratified the existing treaties
should be pressured to do so. These proposals are, however, unwise.
Cultural property is, in most ways, just like ordinary property, and
existing laws and practices that govern the treatment of ordinary
property should apply to cultural property as well. The distinctive
features of cultural property do not justify the existing treaty
regimes or proposals to strengthen them.

I'm looking forward to reading this and hope to have some have some thoughts on it in the spring. Right now I'm note that it sounds like it has a similar approach as Posner and Vermeule's important article on Transitional Justice as Ordinary Justice, which appeared in the Harvard Law Review back in 2004. Similar, at least, in that it tries to treat something scholars have thought as special (cultural property or transitional justice) as something best dealt with using more standard paradigms. (I've thought since reading their article that we might also think of "transitional justice as ordinary injustice," but that's a subject for exploration at another time, on another blog....)

In teaching property, I try to emphasize the boundaries between, and overlaps with, other basic subjects. That helps to justify my spending substantial time on nuisance and trespass. Years ago, one of my exam questions featured a cross-boundary invasion of Kudzu (which I described and illustrated with a photo for the benefit of the non-Southerners in my class; see http://en.wikipedia.org/wiki/Kudzu). I was reminded of that question by a recent case, which I've summarized for a bimonthly column that I write for the ABA magazine, Probate & Property:

TREES: Tree owner has no obligation to trim encroaching branches or eliminate encroaching roots. Roots from neighbors' trees, growing along the property line, caused $61,000 in damage to the foundation of a house. After discovery of the damage, the neighbors cut the trees down, but the homeowners brought an action for damages based on trespass and nuisance. In a case of first impression for Oregon, the court held for defendants. The court recognized a split of authority with respect to nuisance liability. In some states, a landowner who negligently allows roots or branches to damage a neighbor's property is liable. In other states, a landowner is absolutely immune; the injured owner's only recourse is self-help (cutting the branches or roots himself). The court failed to resolve this issue for Oregon because the homeowners had not alleged culpability or negligence. The court explained that the lack of fault also meant the tree owners had not committed a trespass. Carvalho v. Wolfe, 140 P.3d 1161 (Or. Ct. App. 2006).

Amongst the blizzard of recent scholarship on Kelo, I was reminded today of a classic article on public use. I am home reading a seminar paper on Kelo, and the student-author cited a classic on the subject authored by my recently-retired colleague, Professor Larry Berger.

If you don't mind blowing some dust off an old bound volume in the library stacks, consider re-reading Lawrence Berger, The Public Use Requirement in Emminent Domain, 57 Or. L.Rev. 203 (1978). Larry is a great friend and mentor of mine, and as many of you know, his property scholarship has always been first rate.

Rick Duncan

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You might be interested in this story from the New York Times on homelessness on Oahu. Folks just pitch a tent on the beach--which might sound like fun to some for a moment, until ones realizes that there's no running water; obviously no bathroom; no security. Homelessness and poverty are real problems in Hawaii, in part because they detract from the all-important tourist experience. And that led to a move last spring to displace the homeless (many of whom are veterans) from Waikiki. Now they're more out of sight, in the rough strech over on the western edge of Oahu. It's a piece of the problem that aloha jurisprudence seeks to address.

This Article proposes that local governments should be able to decide for themselves how to protect private property, and then be held to that choice as if it were a local constitutional pre-commitment. Specifically, the Article proposes state enabling legislation to create a mechanism for local pre-commitments around the most contested takings and land use issues, like the meaning of public use, the extent of just compensation, the diminution of value that triggers compensation, and others. The resulting local variation in property regimes would allow consumers - homeowners, developers, and any other property owners - to select the property protection they want by choosing where to live and invest. It would also allow local governments to use variation in property protection as a basis for inter-local competition. Implicit in this proposal is a view of property protection as a tool for attracting investment. Given the opportunity, local governments should offer property protection when the costs of that protection - in the form of increased compensation and decreased flexibility - are less than the benefits from increased investment. This cost-benefit calculus will apply differently depending on the characteristics and priorities of particular local governments.

Ben Barros

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The problems of the intellectual property (“IP”) anticommons are infamous. Many people fear that the potential for vast numbers of IP rights to cover a single good or service will prevent an enterprise from even attempting to launch a business for fear of being unduly taxed or retarded or simply held up. This Article offers a solution based on private ordering within the context of existing laws. This approach uses a limited liability entity structured so that IP owners are given an actual stake in the operating business and thus an incentive to participate in the enterprise; and yet at the same time, the IP owners face a number of constraints that mitigate their interest in acting opportunistically by holding out. Through careful attention to IP owner payoffs and self-restraint, the proposed structure is designed to coordinate behavior among relevant IP owners, thus overcoming the anticommons problem. This approach is designed to help lawyers serve their role as transaction cost engineers who can structure relationships in ways that get deals done.

Ben Barros

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Thanks, Ben Barros, for inviting me to appear as a guest on Property Prof. I'm really looking forward to this, and this time of year an added benefit is the opportunity to go to a place where I can find respite from the chores of exam writing and grading. Moments ago I finished preparing my property exam, which I give tomorrow.

As profs we grade student exam answers until we're blue in the face. But what if students graded our exam questions; or we graded each other's exam questions. What makes a major essay question merit an "A" grade? Which ones deserve a lower grades? I expect we may have markedly different perspectives on questions of testing theory and strategy.

I'll start off with three points. (1) With a typical fact pattern, it's easier to grade answers if the question ends by asking the student to discuss a series of discrete issues. (For example, (a) What interests are created by the Deed from A to B? (b) Does X have any claim to the rents generated by the Property?). This is an efficient approach, however, there is a tradeoff. Such a "structured question" has two weaknesses, and will not get an "A" exam drafting grade from me. First, that type of question reduces the need for students to do their own issue spotting. Second, it eliminates the need for the student to decide how best to organize an answer that includes multiple interrelated parts. Thus, it's generally better to end an essay question with a general call for analysis. Depending on the question, this could be as broad as "Discuss all the property claims [all of the persons named in the question] may raise, together with any defenses"? Or the question may indicate litigation has started, with some focusing by simply naming the plaintiffs and defendants. Then the student has to figure out what property claims and defenses are likely.

(2) Usually the essay question should synthesize elements from at least two subject matters. For example, a deed or a devise can contain language that arguably creates a defeasible fee simple, and the present possessor may have a claim to quiet title against the holder of the future interest. Often I find that the average students will spot and discuss all major issues, but they will not competently articulate how resolution of one issue affects resolution of the other. I award substantial credit to answers that contain a good discussion of the relationships among various issues.

(3) "Kitchen sink" questions, as an extension of the synthesis idea of (2) above, are bad. Many of us (me included) have congratulated ourselves for writing the "Perfect Question" that has everything in it. I strive not to do this again. Even with what appears to be a generous time allotment, such questions reward students who type or write fast, spotting issues up and down, right and left, with even the brightest students having no time to go beyond superficial analysis of any particular issue. The "brilliant" question that "has everything" deserves an F grade.

About a dozen churches are within a few miles of one another, and more are under construction. Neighbors venturing out for bagels and other errands find themselves stuck in traffic, heads bowed not in faith but frustration. Some complain that the traffic persists all week, as religious, youth, sports, and other activities draw crowds after work and school.

"It's ridiculous," says Pat DeLanger, an accountant who was about to climb into her car on a recent Sunday with her teen-age daughter after a service at St. Isaac Jogues Catholic Church. She lives less than a mile away, but expects her Sunday morning drive to stretch to 30 minutes once construction on another church across the street is complete. "We live right there. We probably could walk faster."

While communities traditionally zone against houses of ill-repute, not houses of worship, frustrations have grown since 2000, when then-President Clinton signed the Religious Land Use and Institutionalized Persons Act. The law doesn't exempt churches from zoning regulations, per se. But when religious groups say the rules would create "a substantial burden," officials must show a compelling reason for the limits. Sometimes, the results leave neighborhoods feeling helpless in the face of ecclesiastical development.

Thanks to my colleague, Anthony Schutz, for the pointer.

Rick Duncan

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Probate records are ubiquitous. Virtually every American county has records of estates of the dead. These records contain rich source material for any study of American legal and social history. They have a lot to tell us about family life, about the economy, about love and death and every aspect of life in America. Yet very few scholars have tried to tap these records. There are very few empirical studies that use as their main source probate records, probably no more than a dozen or so, and even fewer in California. This research note is a modest attempt to add to the stock of knowledge, and to document some basic facts about the probate system at work in one place and at one time (San Bernardino, California, 1964). We analyze 513 probate records - both intestate and testate proceedings - of decedents who died in 1964 and whose probate proceedings took place in San Bernardino County, California.

Part I of this article provides a brief historical background on San Bernardino County and the state of probate law in California in the 1960s. Part II then describes the research methodology: the sample, the data collection process, and the typical testate and intestate files. Part III outlines the findings of this research, both with respect to intestate and testate proceedings, followed by some concluding remarks.

This is an important guide to the kinds of evidence we can extract from probate records.And if you like that, keep on the look-out for a really terrific student note on wills probated in Marengo County, Alabama in the 1830s and 1840s, which is coming out next year in the Alabama Law Review. It looks to similar questions as Friedmanand company, as well as a few different questions. The questions studied include: what are the demographic characteristics of the people who employed wills, who receives property, and how are slaves treated in the wills. You might also be interested in Jeffrey A. Schoenblum's empirical study of will contests in Davidson County, Tennessee.

Endnote: The image is from our friends at the Library of Congress' Historic Buildings Survey.

By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional.

There seemed little prospect that either the Louisville, Ky., or Seattle plans would survive the hostile scrutiny of the court’s new majority. In each system, students are offered a choice of schools but can be denied admission based on their race if enrolling at a particular school would upset the racial balance.

At its most profound, the debate among the justices was over whether measures designed to maintain or achieve integration should be subjected to the same harsh scrutiny to which Brown v. Board of Education subjected the regime of official segregation. In the view of the conservative majority, the answer was yes.

Over at How Appealing, Howard Bashman has a series of links to articles discussing the case.

Rick Duncan

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First off, thanks to Ben Barros for inviting me to guest blog on this site. I'm a big fan of the site, and I'm looking forward to many interesting discussions.

Since, like many of you, I'm in the midst of writing an exam (for my Land Use class), I thought I'd start off by just quickly sharing this interesting tidbit I received in my inbox from Alex Marshall, of the Regional Plan Association as part of the RPA newsletter. In the email, he observes an apparent correlation between income inequality and exceptionally tall buildings. Here are the key paragraphs of his discussion:

The
majority of the tallest 100 skyscapers are in the United States, (35), and China
(27). It is a remarkable story to see how China, which a generation ago probably
had no tall buildings, now has almost as many as the United States. The other
countries in the top 100, in order of the number of buildings they had, were
Dubai (7), Malaysia (3), Australia (3), Canada (3), Singapore (3), Saudi Arabia
(2), Taiwan (2), Bahrain (2), Germany (2), South Korea (2), Qatar (1), Russia
(1), Philippines (1), Thailand (1), North Korea (1), and Japan (1). This list of
countries mostly repeats itself when I looked at the top 200 tallest buildings.
Again, the USA and China dominated, with a smattering of other countries listed
above.

In
general, the countries that have the bulk of the skyscrapers fare poorly on the
inequality rankings. The United States and China rank quite low in income
equality, at 73rd and 85th out of 126 countries. Part of China’s inequity
ranking is shown in that it still actually has a per capita income of about
$1700 per year, less than Guatemala. Given that, it’s amazing it’s been able to
lead the world in production of skyscrapers. Other countries on the top 200 list
also ranked low. Malaysia was at 98th; Singapore was at 85th in income equality.

He does not stake too much on this, as there are many other things that might explain the data (e.g., the timeframe of urbanization in the various countries), but Alex posits an interesting mechanism that he thinks might explain the apparent correlation: in more egalitarian societies, people negatively impacted by skyscrapers are able to exert more influence in the political process and prevent their construction more effectively than in more unequal socities, where the monied interests who want to strut their stuff with tall buildings are more readily able to get their way.

I'm delighted that Jim Smith (University of Georgia) and Eduardo Peñalver (Cornell) will be joining us as guest bloggers in the coming weeks.

Jim holds the John Byrd Martin Chair of Law at the University of Georgia School of Law. He is the author of numerous articles and has written casebooks and treatises on Property, Real Estate Transactions, Real Estate Taxation, and the law of neighbors.

Eduardo joined the faculty at Cornell Law School this year after stints at Fordham Law School and Yale Law School, where he visited last year. Among his recent articles are Property as Entrance (in the Virginia Law Review) and Regulatory Taxings (in the Columbia Law Review).

Welcome!

Ben Barros

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